NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2526-15T4
CARL E. LARSON,
Plaintiff-Appellant,
v.
CITY OF PATERSON, a Corporate
Body Politic of the State of
New Jersey,
Defendant-Respondent.
________________________________
Argued September 18, 2017 – Decided October 26, 2017
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-4092-13.
Edward J. Nolan argued the cause for
appellant.
Jeffrey A. Kopco argued the cause for
respondent (Gordon & Rees, LLP, attorneys;
Elizabeth F. Lorell and Mr. Kopco, of counsel
and on the brief).
PER CURIAM
Plaintiff Carl E. Larson, a firefighter formerly employed by
defendant City of Paterson, appeals from an order granting summary
judgment to defendant and dismissing his complaint alleging
retaliatory discharge for filing workers' compensation claims and
age discrimination in violation of the New Jersey Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Based on our review
of the record under the applicable law, we affirm the dismissal
of plaintiff's LAD claim, reverse the dismissal of his retaliatory
discharge claim and remand for further proceedings.
I.
In our review of the record before the trial court, we accept
the facts and all reasonable inferences therefrom in the light
most favorable to plaintiff because he is the party against whom
summary judgment was entered. Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995). Applying that standard, the record
before the trial court established the following facts.1
1
We are not persuaded by defendant's contention that there are no
material facts in dispute because plaintiff's opposition to
defendant's statement of material facts was unsupported by
citations to the motion record. See R. 4:46-2(b). Although
plaintiff's responses to each of defendant's separate statements
of material fact did not include citations to the record,
plaintiff's opposition was supported by an affidavit submitted in
accordance with Rule 4:46-5(a), and included a counterstatement
of material facts supported by citations to the motion record. See
ibid. We accept plaintiff's version of the facts and all
reasonable inferences that can be reasonably drawn from them in
our consideration of the motion court's granting of defendant's
summary judgment motion.
2 A-2526-15T4
Plaintiff was employed by Paterson as a firefighter from 1987
until 2013. From 2007 through the termination of his employment
in 2013, he held the title of a fire captain.
In 2010 and 2011, plaintiff filed for workers' compensation
benefits for separate work-related injuries, but continued working
until February 2013.
In 2008, plaintiff underwent a surgical procedure for a work-
related neck injury. Following one month of recuperation, in
December 2008, plaintiff was medically cleared to return to work
and resumed his full-time work duties.
In March 2010, plaintiff sustained ligament damage to his
left ankle while exiting a fire truck. Two months later, he
returned to work without any medical restrictions.
Plaintiff filed workers' compensation claims related to his
neck and ankle injuries in 2010 and 2011, respectively. At a
February 13, 2013 meeting, the Paterson City Council adopted a
resolution authorizing a settlement of plaintiff's workers'
compensation claims for $105,876. Fire Chief Michael Postorino
and Fire Director Glenn Brown attended the city council meeting.2
2
The settlement was approved by the workers' compensation court
on April 2, 2013.
3 A-2526-15T4
During the weeks following defendant's approval of the
workers' compensation claims, plaintiff missed two workdays due
to a non-work related back injury. While at home, he received a
call from Deputy Chief Bruce Vandervoort, who informed plaintiff
he needed to speak with Captain Michael Trommelon regarding a
fitness-for-duty physical examination. Plaintiff immediately
advised Trommelon he was ready for the physical. In response,
Trommelon explained that Postorino said plaintiff was to remain
off-duty. Trommelon told plaintiff to call back in a couple days.
A few days later, plaintiff again informed Trommelon he was
ready for his fitness-for-duty physical. Trommelon told plaintiff
that Postorino said plaintiff should remain off-duty until
plaintiff heard from him.
Plaintiff then spoke with his union representative, Captain
Michael Caposella, who said that due to the amount of plaintiff's
compensation award and his medical report defendant was "looking
to terminate [plaintiff]." Caposella advised plaintiff to arrange
a meeting with Postorino.
In mid-March 2013, plaintiff met with Postorino, Deputy Chief
Kevin Hancock, and Caposella. Postorino first asked plaintiff if
he was wearing a recording device and plaintiff said he was not.
Postorino said that if plaintiff was wearing a recording device,
the meeting was over. Postorino then directly addressed
4 A-2526-15T4
plaintiff's workers' compensation claim. Postorino said that due
to plaintiff's compensation award and his medical reports, "the
legal department felt [plaintiff] was a liability and therefore
decided to terminate [him]." He also told plaintiff that the
"city council thought [plaintiff] was so disabled or [plaintiff]
worked with [his] doctors to defraud the city."
Plaintiff explained that he did not want to retire, and
Postorino said, "Well, if you are telling me you are not disabled
and you come back to work you are suspended without pay."
Postorino also said that if plaintiff fought defendant's decision,
plaintiff could go one or two years without a paycheck, and spend
$200 an hour on attorney's fees. Postorino explained that if
plaintiff retired effective April 1, Postorino would keep
plaintiff on administrative leave, but that if the retirement was
delayed until May 1, plaintiff would be required to use
administrative leave days thereby adversely affecting his terminal
leave payment of $10,000.
Plaintiff was forty-nine years of age and felt he had "no
choice" but to retire because he would have been suspended without
pay if he failed to do so. Postorino never said plaintiff was too
old to continue working as a firefighter. Plaintiff submitted his
retirement application the following day.
5 A-2526-15T4
Plaintiff filed a complaint alleging defendant forced him to
retire in retaliation for his assertion of his rights under the
Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, (count one),
and because of his age in violation of the LAD (count two).3 After
the close of discovery, the court granted defendant's motion for
summary judgment and dismissed the complaint with prejudice.
In a written opinion, the court first found plaintiff's
retaliatory discharge claim was barred under N.J.S.A. 10:5-27
because plaintiff sought a remedy available under the LAD. The
court further found it lacked jurisdiction over plaintiff's age
discrimination claim because N.J.S.A. 10:5-12.1 requires that
forced retirement claims be filed exclusively with the Attorney
General.4 The court further determined that even if it had
3
Plaintiff's complaint also asserted causes of action for aiding
and abetting discrimination in violation of the LAD (count three)
and tortious interference with his employment rights (count four).
Plaintiff did not oppose the dismissal of those claims in response
to defendant's summary judgment motion, and does not challenge the
dismissal of the claims on appeal. We therefore do not address
those claims here.
4
Claims that are subject to the requirements of N.J.S.A. 10:5-
12.1 must be filed with the "Attorney General under the provisions
of" N.J.S.A. 10:5-1. The Director of the New Jersey Division on
Civil Rights acts for the Attorney General and receives,
investigates and conducts hearings on complaints alleging LAD
violations. N.J.S.A. 10:5-8(d), (g); Passaic Daily News v. Blair,
63 N.J. 474, 483-84 (1973).
6 A-2526-15T4
jurisdiction and plaintiff's claims5 were not otherwise barred,
plaintiff failed to sustain his burden of showing he suffered an
adverse employment action or was discharged. The court found
there was insufficient evidence showing plaintiff was forced to
retire and that defendant instituted proceedings to terminate
plaintiff's employment.
The court entered an order granting defendant's motion for
summary judgment and dismissing the complaint. This appeal
followed.
II.
We review a trial court's grant of summary judgment de novo.
Cypress Point Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403,
414 (2016). Summary judgment is appropriate where there is no
genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. R. 4:46-2(c). We must "consider
whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in
consideration of the applicable evidentiary standard, are
5
It is unclear whether the court's finding that plaintiff failed
to present evidence he was forced to retire is limited to its
analysis of plaintiff's age discrimination claim. Although the
court's discussion of the issue does not include an express
reference to plaintiff's retaliatory discharge claim, we broadly
read the court's opinion to apply to plaintiff's retaliatory
discharge claim as well.
7 A-2526-15T4
sufficient to permit a rational factfinder to resolve the alleged
disputed issue in favor of the non-moving party." Brill, supra,
142 N.J. at 523.
In his complaint, plaintiff alleges defendant forced him to
retire in retaliation for his filing of the 2010 and 2011 workers'
compensation claims that were resolved in February 2013. The
court granted defendant's motion for summary judgment and
dismissed the claim for three reasons. First, the court determined
it lacked jurisdiction to adjudicate plaintiff's retaliatory
discharge claim under N.J.S.A. 10:5-12.1. Second, the court also
concluded plaintiff's common law retaliatory discharge claim was
preempted by the LAD. Third, the court found that even it had
jurisdiction and the claim was not preempted by the LAD, plaintiff
failed to demonstrate that he suffered an adverse employment
action. We address the court's findings in turn.
A. Jurisdiction
N.J.S.A. 10:5-12.1 states:
Notwithstanding any provision of law to the
contrary, relief for having been required to
retire in violation of the provisions of
[N.J.S.A. 10:5-12], shall be available to the
person aggrieved by that violation solely
through the procedure initiated by filing a
complaint with the Attorney General under the
provisions of [the LAD].
Notwithstanding any provision to the contrary
of [N.J.S.A. 10:5-17] or any other law, relief
8 A-2526-15T4
ordered for or granted to a person in
connection with his being required to retire
in violation of the provisions of [N.J.S.A.
10:5-12] shall be limited to his reinstatement
with back pay and interest.
[N.J.S.A. 10:5-12.1 (emphasis added).]
The court dismissed plaintiff's retaliatory discharge claim
under N.J.S.A. 10:5-12.1 finding it lacked jurisdiction. The
court reasoned that N.J.S.A. 10:5-12.1 permitted the assertion of
a "required to retire" claim only "by filing a complaint with the
Attorney General under the provisions of" the LAD. The court
concluded the exclusive forum for plaintiff's retaliatory
discharge claim was with the Attorney General. We disagree.
The court erred in its application of N.J.S.A. 10:5-12.1
because, by its express terms, the statute applies only to claims
where an employee is "required to retire in violation of the
provision of [N.J.S.A. 10:5-12]." Plaintiff's retaliatory
discharge claim, however, is not based on an alleged violation of
N.J.S.A. 10:5-12, and the statute does not prohibit discrimination
or retaliation against an employee for asserting rights to workers'
compensation benefits.6 Plaintiff alleges he was forced to retire
6
N.J.S.A. 10:5-12 prohibits employment discrimination
because of the race, creed, color, national
origin, ancestry, age, marital status, civil
union status, domestic partnership status,
9 A-2526-15T4
in retaliation for his assertion of rights under the Workers'
Compensation Act, N.J.S.A. 34:15-1 to -142.
Plaintiff asserted a well-established common law cause of
action unrelated to the LAD. In Lally v. Copygraphics, 85 N.J.
668, 677 (1981), the Court considered N.J.S.A. 34:15-39.1, which
prohibits an employer from "discharg[ing] or in any other manner
discriminat[ing] against an employee as to his employment because
such employee has claimed or attempted to claim workmen's
compensation benefits from such employer . . . ." The Court held
"there exists a common law cause of action for civil redress for
a retaliatory firing" under N.J.S.A. 34:15-39.1 for employees who
are discriminated against or discharged for claiming or attempting
to claim workers' compensation benefits. Id. at 670.
Plaintiff asserted a Lally common law cause of action for
retaliatory discharge here. N.J.S.A. 10:5-12.1 did not deprive
the court of jurisdiction because the claim is not based on an
affectional or sexual orientation, genetic
information, pregnancy, sex, gender identity
or expression, disability or atypical
hereditary cellular or blood trait of any
individual, or because of the liability for
service in the Armed Forces of the United
States or the nationality of any individual,
or because of the refusal to submit to a
genetic test or make available the results of
a genetic test to an employer . . . .
10 A-2526-15T4
alleged violation of N.J.S.A. 10:5-12. The court erred in
concluding otherwise.
B. Preemption
The court also erred by finding that plaintiff's common law
retaliatory discharge claim was preempted by the LAD. The court
concluded the cause of action sought a "remedy available under"
the LAD and was therefore preempted under the LAD's exclusivity
provision, N.J.S.A. 10:5-27, which provides that:
The provisions of [the LAD] shall be construed
fairly and justly with due regard to the
interests of all parties. Nothing contained
in this act shall be deemed to repeal . . .
any other law of this State relating to
discrimination . . . except that, as to
practices and acts declared unlawful by
[N.J.S.A. 10:5-12] of this act, the procedure
herein provided shall, while pending, be
exclusive; and the final determination therein
shall exclude any other action, civil or
criminal, based on the same grievance of the
individual concerned.
[N.J.S.A. 10:5-27.]
In making its determination, the court did not consider the
nature of plaintiff's claim and the requirements of the LAD. To
be sure, the LAD preempts common law claims "when a statutory
remedy under the LAD exists." Catalane v. Gilian Instrument Corp.,
271 N.J. Super. 476, 492 (App. Div. 1994). For example, in
Catalane, we found "the plaintiff's common law claim that he was
11 A-2526-15T4
terminated because of his age in violation of public policy" should
have been dismissed because it was preempted by the LAD. Ibid.
The LAD is "intended to increase the choice of remedies for
victims of discrimination." Wilson v. Wal-Mart Stores, 158 N.J.
263, 270-71 (1999). Its exclusivity provision, N.J.S.A. 10:5-27,
"basically seeks to prevent parties from having a 'second bite at
the apple' by pursuing the alternative route to relief." Id. at
271 (citation omitted). "It seeks to prevent duplication of
efforts and forum shopping." Ibid.
"The LAD does not 'bar, exclude or otherwise affect any right
or action, civil or criminal, which may exist independently of any
right to redress against or specific relief from any unlawful
employment practice or unlawful discrimination.'" Dale v. Boy
Scouts of Am., 308 N.J. Super. 516, 542 (App. Div. 1998) (quoting
N.J.S.A. 10:5-27), aff'd, 160 N.J. 562 (1999), rev'd on other
grounds, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000).
"[A]ll remedies available in common law tort actions [are]
available to prevailing plaintiffs. These remedies are in addition
to any provided by [the LAD] or any other statute." Ibid.
(quoting N.J.S.A. 10:5-13). The LAD does not preempt actions "to
vindicate particular interests in addition to or aside from those
sought to be protected by a LAD action," such as common law claims
for discharge in retaliation for filing workers' compensations
12 A-2526-15T4
claims under Lally. Shaner v. Horizon Bancorp, 116 N.J. 433, 454
(1989).
Here, plaintiff has not asserted a common law cause of action
for discrimination in employment and does seek a remedy existing
under the LAD. See Catalane, supra, 271 N.J. Super. at 492.
Plaintiff asserts a common law claim based on an alleged violation
of N.J.S.A. 34:15-39.1, not the LAD. The court therefore erred
in finding the retaliatory discharge claim is preempted by the
LAD, and by granting defendant's motion for summary judgment
dismissing the claim on that basis. Shaner, supra, 116 N.J. at
454; Dale, supra, 308 N.J. Super. at 542.
C. Adverse Employment Action
The court also addressed the merits of the retaliatory
discharge claim, finding that even if it had jurisdiction and the
claim was not preempted by the LAD, there were no disputed issues
of material fact and plaintiff failed to present evidence
sufficient to support the claim as a matter of law. Based on our
review of the record, we are convinced the court erred in its
assessment of the evidence and incorrectly based its conclusion
on disputed issues of material fact.
In determining whether there is a genuine issue of material
fact precluding the grant of summary judgment, a court must
consider "whether the competent evidential materials presented,
13 A-2526-15T4
when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill,
supra, 142 N.J. at 540. Although we do not owe the motion court's
conclusions any deference, Nicholas v. Mynster, 213 N.J. 463, 478
(2013), we should affirm a judgment if we determine the motion
court's conclusions of law were correct. Henry v. N.J. Dept. of
Human Servs., 204 N.J. 320, 330 (2010).
It is not the court's function to "weigh the evidence and
determine the outcome" based on contested factual evidence
presented by the parties. Gilhooley v. Cnty. of Union, 164 N.J.
533, 545 (2000) (citing Brill, supra, 142 N.J. at 540). It is the
jury's role to decide all genuine issues of material fact in
dispute between the parties. Parks v. Rogers, 176 N.J. 491, 502
(2003). A judge may "decide that a party should prevail as a
matter of law" only "when the evidence is utterly one-
sided . . . ." Gilhooley, supra, 164 N.J. at 545. Applying these
standards, we are satisfied that there were genuine issues of
material fact surrounding the termination of plaintiff's
employment and, therefore, the judge mistakenly granted
defendant's motion dismissing the retaliatory discharge cause of
action.
14 A-2526-15T4
To establish a prima facie case for retaliatory discharge for
claiming workers' compensation benefits, an employee must prove:
"(1) that he made or attempted to make a claim for workers'
compensation; and (2) that he was discharged in retaliation for
making that claim." Cerracchio v. Alden Leeds, Inc., 223 N.J.
Super. 435, 442-43 (App. Div. 1988) (quoting Galante v. Sandoz,
Inc., 192 N.J. Super. 403, 407 (Law Div. 1983), aff'd, 196 N.J.
Super. 568 (App. Div. 1984)). Here, there is no dispute plaintiff
made workers' compensation claims and his employment was
subsequently terminated. Thus, the issue presented on defendant's
motion for summary judgment was whether plaintiff presented
sufficient evidence showing he was discharged in retaliation for
making the workers' compensation claims.
Plaintiff does not allege that defendant directly terminated
his employment. Instead, his complaint alleges defendant's
purported retaliatory actions compelled his decision to retire.
We read the complaint to allege that plaintiff was constructively
discharged. A constructive discharge occurs when an employer
engages in "severe or pervasive" conduct that is "so intolerable
. . . a reasonable person would be forced to resign rather than
continue to endure it." Shepherd v. Hunterdon Developmental Ctr.,
174 N.J. 1, 28 (2002) (quoting Jones v. Aluminum Shapes, Inc., 339
N.J. Super. 412, 428 (App. Div. 2001)). "[T]he standard envisions
15 A-2526-15T4
a 'sense of outrageous, coercive and unconscionable
requirements.'" Ibid. (citation omitted). The heightened standard
demanded for proof of a constructive discharge claim recognizes
an employee's "obligation to do what is necessary and reasonable
to remain employed rather than" resign or retire. Ibid. (quoting
Shepherd v. Hunterdon Developmental Center, 336 N.J. Super. 395,
420 (App. Div. 2001), rev'd on other grounds, 174 N.J. 1 (2002)).
The proofs required to establish a constructive discharge are not
subjective in nature, but are instead objective, i.e. whether a
"reasonable person" would have resigned. See ibid.; see also
Muench v. Township of Haddon, 255 N.J. Super. 288, 302 (App. Div.
1992).
Here the court did not directly assess plaintiff's claim
under the constructive discharge standard.7 Instead, the court
implicitly applied the standard because it concluded plaintiff was
not forced to retire and therefore was not subject to any adverse
employment action for filing his workers' compensation claims.
7
We reject defendant's contention that plaintiff did not claim
before the motion court that he was constructively discharged.
Although plaintiff did not characterize the termination of his
employment as a "constructive discharge" before the motion court,
his complaint and his brief in opposition to defendant's summary
judgment motion assert that defendant's alleged retaliatory
actions forced him to retire. Those allegations constitute a
constructive discharge claim. See Shepherd, supra, 174 N.J. at 28.
16 A-2526-15T4
In our review of the record, we consider plaintiff's
retaliation claim to determine if there was evidence showing he
was constructively discharged sufficient to require submission of
the issue to the jury. Determining if an employee suffered a
"[c]onstructive discharge is a 'heavily fact-driven determination
. . . .'" Ibid.
In Shepherd, the Court observed that in assessing whether an
employee claiming harassment was constructively discharged, a
"trial court should consider the nature of the harassment, the
closeness of the working relationship between the harasser and the
victim, whether the employee resorted to internal grievance
procedures, the responsiveness of the employer to the employee's
complaints, and all other relevant circumstances." Shepherd,
supra, 174 N.J. at 28 (quoting Shepherd, supra, 336 N.J. Super.
at 420). Other courts that have required to determine if an
employee's resignation was the result of a constructive discharge
have considered factors "including whether the employee was
threatened with discharge, encouraged to resign, demoted, subject
to reduced pay or benefits, involuntarily transferred to a less
desirable position, subject to altered job responsibilities, or
given unsatisfactory job evaluations." See, e.g., Mandel v. M&Q
Packaging Corp., 706 F.3d 157, 169-70 (3d Cir. 2013); accord
17 A-2526-15T4
Colwell v. Rite Aid Corp., 602 F.3d 495, 502-503 (3d Cir. 2010);
see also Embirco v. U.S. Steel Corp., 404 F. Supp. 2d
802, 821-22 (E.D. Pa. 205) (finding evidence showing that employee
had been excluded from training, suffered an unexpected reduction
in his performance evaluation and supervisor's recommendation that
he accept an early retirement program was sufficient to support a
constructive discharge claim), aff'd, 245 Fed. App'x. 184 (3d Cir.
2007).
Here, the motion court found plaintiff did not present
"evidence that he was forced to resign." The court further found
plaintiff's "mere statement" he was forced to resign "is not
probative in light of [his] request for retirement papers
and . . . Caposela's deposition testimony" that termination
proceedings under the union contract had not begun when plaintiff
retired. The court reasoned that because there was evidence
showing defendant could have taken action to challenge a
termination or suspension without pay, a rational fact-finder
could not conclude he was forced to retire.
In making its findings, the court mistakenly failed to
consider all of the evidence, made credibility determinations, and
relied on disputed material facts. Contrary to the court's
finding, there was evidence plaintiff was forced to retire.
Plaintiff testified he was capable of performing his duties, and
18 A-2526-15T4
he had been fully performing his duties for the five-year period
following his 2008 surgery and prior to the 2013 settlement of the
workers' compensation cases. He twice requested a fitness for
duty examination to demonstrate his ability to perform his duties
following the workers' compensation settlement. Nevertheless,
according to plaintiff, Postorino said defendant decided to
terminate plaintiff's employment because of plaintiff's workers'
compensation claims.
According to plaintiff, Postorino also said that if plaintiff
was not disabled and returned to work, plaintiff would be
"suspended without pay." Postorino threatened that if plaintiff
fought the City's decision, plaintiff "could be out [of work] one
to two years without a paycheck" and paying "$200 an hour for
attorney's fees."
Moreover, plaintiff testified Postorino said that if
plaintiff did not retire by April 1, 2013, Postorino would remove
plaintiff from administrative leave and force him to use
accumulated leave time. That action would been reduced plaintiff's
$10,000 terminal leave payment.
Plaintiff testified that Postorino left him with "no choice"
because he had a family to support and bills to pay. Plaintiff
testified that in response to Postorino's statements and
threatened actions, he chose to retire.
19 A-2526-15T4
Postorino and other witnesses dispute plaintiff's version of
Postorino's statements and the other circumstances leading to
plaintiff's retirement. But the court was required to accept
plaintiff's version of the facts as true. Brill, supra, 142 N.J.
at 535. Instead, the court mistakenly discounted plaintiff's
version of the events and resolved the credibility disputes in
defendant's favor. See Rogers, supra, 176 N.J. at 503 (finding
summary judgment should be denied when resolution of material
issues of fact are dependent on credibility determinations).
Based on our review of the record, and viewing the evidence
in the light most favorable to plaintiff, we are convinced a
reasonable trier of fact could conclude that plaintiff was
constructively discharged and forced to retire. The evidence
showed Postorino refused to permit plaintiff to take a fitness-
for-duty exam thereby foreclosing plaintiff's opportunity to
demonstrate that he was capable of performing his duties.
Postorino told plaintiff that defendant made a decision to
terminate his employment. Postorino further advised plaintiff
that if he attempted to return to work, he would be suspended
without pay as he pursued any legal remedies. Postorino also
encouraged plaintiff's retirement and discouraged plaintiff's if
he retired by April 1, 2013.
20 A-2526-15T4
By any objective measure, defendant presented plaintiff with
an objectively coercive and intolerable choice: retire or face
immediate termination or a suspension without pay. Postorino's
statements and threats to plaintiff created circumstances "so
intolerable that a reasonable person would be forced to resign
rather than continue to endure" them. Shepherd, supra, 174 N.J.
at 28.
We are not persuaded by defendant's argument that plaintiff
was not constructively discharged because defendant did not
commence formal proceedings to effectuate his termination and
there were available means to challenge a suspension or
termination. We are mindful that an employee claiming a
constructive discharged must do "what is necessary and reasonable
in order to remain employed rather than simply quit." Shepherd,
supra, 174 N.J. at 28.
But here, Postorino said the termination decision was already
made and, thus, there was nothing plaintiff could reasonably do
to remain employed rather than retire. Moreover, Postorino said
that if plaintiff attempted to continue to work, he would be
suspended without pay during the period any challenge to the
21 A-2526-15T4
suspension was waged.8 Postorino threatened that if plaintiff
attempted to return to work he would be forced to live for years
without a paycheck. Therefore, it was defendant, through its Fire
Chief, that rendered recourse to any available means to challenge
a suspension a wholly unreasonable option for plaintiff. Under
all of the circumstances, we are convinced defendant did not
present plaintiff with any reasonable alternative to an immediate
retirement and thereby coerced him into doing so. The evidence
presented, therefore, was sufficient to permit a rational fact-
finder to conclude that plaintiff was constructively discharged.
In sum, we conclude the court had jurisdiction over
plaintiff's retaliatory discharge claim, the claim is not
preempted by the LAD, and plaintiff presented sufficient evidence
showing he suffered an adverse employment action, a constructive
discharge, for submission of those issues to a jury. We reverse
the court's grant of summary judgment to defendant on count one
of the complaint.
8
We observe that Postorino statements appear to conflict. He
told plaintiff that defendant decided to terminate his employment
and, on the other hand, said that if plaintiff attempted to return
to work he would be suspended without pay. Resolution of the
conflict is unnecessary. In our view, the conflicting statements,
when viewed in the light most favorable to plaintiff, support the
reasonable inference that Postorino made clear that plaintiff
would no longer be permitted to work for defendant and would not
receive any future pay from defendant.
22 A-2526-15T4
III.
Plaintiff next challenges the court's dismissal of his cause
of action alleging he was forced to retire because of his age in
violation of the LAD. The court dismissed the claim finding that
it lacked jurisdiction over the claim under N.J.S.A. 10:5-21, and
that plaintiff failed to present any evidence showing defendant
forced plaintiff to retire because of his age. The court also
found plaintiff could not establish an age discrimination claim
because he did not suffer an adverse employment action.
N.J.S.A. 10:5-12 prohibits employment discrimination based
on an employee's age. In pertinent part, N.J.S.A. 10:5-12 provides
as follows:
It shall be an unlawful employment practice,
or, as the case may be, an unlawful
discrimination . . . [f]or an employer,
because of the . . . age . . . of any
individual . . . to refuse to hire or employ
or to bar or to discharge or require to retire,
unless justified by lawful considerations
other than age, from employment such
individual or to discriminate against such
individual in compensation or in terms,
conditions or privileges of employment.
[See also N.J.S.A. 10:5-4.]
"All LAD claims are evaluated in accordance with the United
States Supreme Court's burden-shifting mechanism" established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
23 A-2526-15T4
36 L. Ed. 2d 668 (1973).9 Battaglia v. United Parcel Serv., Inc.,
214 N.J. 518, 546 (2013); accord Victor v. State, 203 N.J. 383,
408 (2010). A plaintiff claiming age discrimination must first
present evidence establishing a prima facie case of discrimination
by showing age played a determinative role in the adverse
employment action. Bergen Commer. Bank v. Sisler, 157 N.J. 188,
212-13 (1999). Upon plaintiff's demonstration of a prima facie
case, the burden shifts to the employer to articulate a legitimate
non-discriminatory reason for the adverse employment action. Id.
at 210-11.
"In order to successfully assert a prima facie claim of age
discrimination under the LAD, plaintiff must show that: (1) [he]
was a member of a protected group; (2) [his] job performance met
the 'employer's legitimate expectations'; (3) [he] was terminated;
and (4) the employer replaced, or sought to replace, [him]." Nini
v. Mercer Cty. Cmty. Coll., 406 N.J. Super. 547, 554-58 (App. Div.
2009) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450
(2005)), aff'd, 202 N.J. 98 (2010). Satisfaction of the fourth
element "require[s] a showing that the plaintiff was replaced with
9
In cases where there is direct evidence of discrimination, the
McDonnell Douglas burden-shifting analysis is not applicable. See
Smith v. Millville Rescue Squad, 225 N.J. 373, 394-96 (2016)
(explaining differing analyses required of discrimination claims
based on direct and circumstantial evidence). Plaintiff does not
offer any direct evidence of age discrimination here.
24 A-2526-15T4
'a candidate sufficiently younger to permit an inference of age
discrimination,'" Sisler, supra, 157 N.J. at 213 (quoting Kelly
v. Bally's Grand, Inc., 285 N.J. Super. 422, 429 (App. Div. 1995)),
or that otherwise creates an inference of age discrimination,
Reynolds v. Palnut Co., 330 N.J. Super. 162, 168-69 (App. Div.
2000).
A plaintiff must "show that the prohibited consideration
[,age,] played a role in the decision making process and that it
had a determinative influence on the outcome of that process."
Garnes v. Passaic Cty., 437 N.J. Super. 520, 530 (App. Div. 2014)
(quoting Bergen Commer. Bank, supra, 157 N.J. at 207). "Although
the discrimination must be intentional, an employee may attempt
to prove employment discrimination by using either direct or
circumstantial evidence." Ibid. (quoting Bergen Commer. Bank,
supra, 157 N.J. at 208).
The court correctly dismissed plaintiff's age discrimination
claim because he failed to establish prima facie case of age
discrimination. The record is devoid of any evidence that he "was
replaced with 'a candidate sufficiently younger,'" Nini, supra,
406 N.J. Super. at 554, or that otherwise permits an inference of
age discrimination. Reynolds, supra, 330 N.J. Super. at 168-69.
In opposition to defendant's motion, plaintiff did not present any
evidence showing that his age played a role in any of defendant's
25 A-2526-15T4
actions that caused him to retire. In contrast, plaintiff
presented evidence showing only that he was forced to retire in
retaliation for filing workers' compensation claims. We therefore
affirm the court's dismissal of plaintiff's age discrimination
claim.
Because we are satisfied plaintiff failed to present any
evidence showing he was required to retire because of his age, it
is unnecessary to decide if the court correctly determined that
N.J.S.A. 10:5-12.1 vests exclusive jurisdiction over the claim
with the New Jersey Division on Civil Rights. We offer no opinion
on the issue.10
Last, we reject plaintiff's contention that the court erred
by dismissing his claim of discrimination based on perceived
disability. The court did not dismiss a perceived disability
claim because plaintiff's complaint does not allege a cause of
action for discrimination based on a perceived disability.
Affirmed in part, reversed in part. We do not retain
jurisdiction.
10
It is also unnecessary to again consider plaintiff's argument
that the court erred by finding that he did not suffer an adverse
employment action. As noted, viewing the evidence in the light
most favorable to plaintiff, he demonstrated that he was
constructively discharged by being forced to retire. Plaintiff's
age discrimination claim fails because he did not to present any
evidence the constructive discharge was because of his age.
26 A-2526-15T4
CARL E. LARSON VS. CITY OF PATERSON, ETC. (L-4092-13, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion